Submission By Focus On Family Sa7 (to Salrc)

19 December 2003 Mr W Henegan The Secretary South African Law Reform Commission Private bag X 668 PRETORIA 0001 Dear Mr Henegan It would be appreciated if the accompanying submission relating to Discussion Paper 104, Project 118, DOMESTIC PARTNERSHIPS, could be placed before the Commission. We agree to the commission quoting from or referring to comments made and acknowledge that the Commission may have to release information contained in the representation. Yours faithfully

Malcolm St Clair Chief Executive Officer Focus on the Family

PRESERVING MARRIAGE

A

B

AN APPEAL FOR THE PRESERVATION OF THE NATURAL DEFINITION OF MARRIAGE IN SOUTH AFRICAN LAW AN APPEAL NOT TO BESTOW LEGAL RECOGNITION ON REGISTERED AND UNREGISTERED PARTNERSHIPS

SUBMISSION REGARDING DOMESTIC PARTNERSHIPS: PROPOSED LEGISLATION

TABLE OF CONTENTS

EXECUTIVE SUMMARY.........................................................................................................3 A. RATIONALE: AN APPEAL FOR THE PRESERVATION OF THE NATURAL DEFINITION OF MARRIAGE...................................................................................................1 Introduction..........................................................................................................................................1 Who is Focus on the Family Southern Africa?..................................................................................1 The definition of marriage and its recognition as a human right....................................................1 Answering arguments supporting legal recognition of homosexual unions....................................2 Do the majority of South Africans want legal recognition of homosexuality?...............................3 Benefits of real marriage for bringing up children...........................................................................3 Recommendation..................................................................................................................................5 B. AN APPEAL NOT TO PROVIDE LEGAL RECOGNITION FOR REGISTERED AND UNREGISTERED DOMESTIC PARTNERSHIPS....................................................................6 Alternative proposals of the SALRC for recognising cohabiting couples.......................................6 The negative social impact of cohabitation........................................................................................6 Recommendation..................................................................................................................................7

EXECUTIVE SUMMARY The proposals of the Law Reform Commission The South African Law Reform Commission (SALRC) proposes in discussion paper 104 on 'Domestic partnerships' several alternative means to legally recognise homosexual relationships and cohabiting heterosexual couples. This submission is split into two parts, to address these two separate, but related issues: A. Same-sex Relationships The SALRC report proposes that same-sex relationships be acknowledged by the law. Recognition could be effected in one of the following ways: 'common-law marriage' or civil marriage, both of which alternatives will require an amendment of the Marriage Act of 1961, or civil unions. We appeal to the South African Law Commission to preserve the historical and natural definition of marriage and not to propose same-sex marriages. B.

Registered and Unregistered Partnerships

4 The SALRC report proposes that registered and unregistered partnerships be given legal recognition and consequences. We appeal to the South African Law Commission not to bestow legal recognition on registered and unregistered partnerships Analysis Marriage in South Africa is currently defined as 'the legally recognized voluntary union of a man and a woman for life to the exclusion of all others'. We believe this definition should continue to be supported by the law. South Africans are almost unanimously opposed to sexual relations between people of the same sex, and the government and courts should not feel pressured to change the law in response to the demands of a tiny, but vocal minority. Their manipulation of the political process, media and judiciary should be opposed. Research has demonstrated the benefits of monogamous heterosexual marriage for stable healthy relationships and successful upbringing of children - over all other alternatives such as same-sex parenting; single-parenting or co-habiting couples. It is therefore in the best interests of society that the state promotes traditional marriage rather than the other alternatives advanced in SALRC discussion paper 104. Alternative legal recognition of conjugal relationships would have a negative social impact on the family as it would encourage more people to chose these undesirable forms of relationship. RECOMMENDATIONS We therefore recommend that:  All the alternative proposals to legally recognise homosexual relationships and cohabiting unmarried couples through extension of the definition of marriage; civil unions; registered or unregistered partnerships, as outlined in discussion paper 104 or elsewhere should all be rejected.  The reference to 'sexual orientation' be removed from the South African Bill of Rights and all other legislation.  To address the social problems caused by 'co-habiting unmarried couples', these people should be encouraged to get married or separate.  Those struggling with homosexual temptation should seek help from Christian organisations and churches.

A. RATIONALE: AN APPEAL FOR THE PRESERVATION OF THE NATURAL DEFINITION OF MARRIAGE Introduction The authors of Discussion Paper 104 (Project 118) by The South African Law Reform Commission, have set out proposals for legal recognition of same-sex relationships, registered partnerships, and unregistered partnerships. They cite as reasons the prohibition on discrimination on grounds of 'sexual orientation' in section 9(3) of the constitution1; various media reports2 and various lawsuits by homosexuals to try to gain more recognition for their relationships. This submission concentrates on the proposed legal recognition of same-sex relationships, and the proposed options by which such recognition could be effected. Two of these options, viz., Common-law marriage and Civil marriage, will entail an amendment to the Marriage Act of 1961, making marriage, as it is currently known, available to both same-and opposite -sex couples. Who is Focus on the Family Southern Africa? Focus on the Family Southern Africa, a non-profit, non-denominational organisation, was established to minister to the needs of families in Southern Africa. It has no political or denominational affiliations. However, its programmes and services are motivated and based on Christian ethics. Focus on the Family exists solely to strengthen families. Focus on the Family broadcasts can be heard on over 40 radio stations in Southern Africa, while newsletters, magazines and other resources are sent to over 40 000 people on our mailing list. Staff respond to telephone calls and letters that include counselling and referral services to families in need. Visit our web site at http://www.safamily.org.za/ The definition of marriage and its recognition as a human right The definition of marriage in South African law is the western Judeo-Christian concept of marriage which reads as follows: 'Marriage is the legally recognised voluntary union of a man and a woman for life to the exclusion of all others'3. From this definition it follows that the South African law presently regards marriage as an opposite sex, monogamous institution. This view is in line with the tradition and experience of the vast majority of the nation. What is needed is a clear legal-political reaffirmation that marriage is a unique male-female community and social institution. The United Nation’s Universal Declaration of Human Rights, the cornerstone of human rights throughout the world, clearly establishes in Article 16 that:

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2 ‘men and women of full age ……… have the right to marry and to found a family….The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ Harvard law professor, Mary Ann Glendon, has stated that ‘…the Declaration is the single most important reference point for international discussions of how to order our future together in our increasingly conflict-ridden and interdependent world.’4. Other fundamental international legal instruments also recognize the right of men and women to marry and to found a family. For example, Article 23.2 of the International Covenant on Civil and Political Rights reads as follows: ‘The right of men and women of marriageable age to marry and to found a family shall be recognized. Unfortunately, the human rights recognized by the Universal Declaration, the International Covenant on Civil and Political Rights, and other international instruments are under constant attack. Referring to the Universal Declaration of Human Rights, Habib C Malik, son of one of the main authors of the Universal Declaration, wrote: ‘One disturbing phenomenon gaining ground today can best be described as the systematic hijacking of human rights to serve special interests and promote dubious agendas of a political and generally secular nature.’5 In examining the meaning of marriage and its relationship to democracy, individual rights and constitution law, neutrality is impossible. For some, sexuality is the starting point. Sexuality is essential for pleasure and intimacy. Marriage is, from this point of view, a state mechanism to encourage committed and stable relationships for those who might wish them. For persons who subscribe to this theory, the definition of marriage as it now stands is a matter of simple discrimination against homosexuals and lesbians. For others, marriage is the starting point. We exist as male or female, intended for community with one another. From this viewpoint, marriage is primarily a shared, socially beneficial way of life as male and female and a marriage recognition statute is a matter of simple definition.6 Answering arguments supporting legal recognition of homosexual unions Professor Barbara Cox, from the California Western School of Law, in her 1996 article claims that a statute which upholds heterosexual marriage only is unconstitutional because its pupose is to discriminate against same-sex couples and the only reason to support it is 'homophobia'. 7 In a paper in the Creighton Law Review (1998) 8 Coolidge and Duncan put forward the view that in order to hold that a law supporting a heterosexual view of marriage is unconstitutional, it must be concluded: (a) that that law has a ‘homophobic’ purpose; (b) that by limiting marriage according to the traditional definition, government disables homosexuals in such a sweeping manner as to make them “strangers to the law”; (c) that none of the rationales offered in support of marriage have any reasonable connection to this definition and (d) that a law that views marriage as a unique male-female sexual community is blatantly irrational and based on bigotry.

3 The implication of this would be that the majority of citizens in South Africa who identify with a heterosexual definition of marriage are 'anti-gay bigots'! Indeed, this implication would extend to the great majority of people around the world who know, rationally or intuitively, that marriage is the union between a man and a woman. The heterosexuality of marriage is not the result of prejudice. Rather it is a global, historical and measurable acknowledgment of the benefits married men and women bring to society by forming families. What is now needed is a clear legal-political reaffirmation that marriage is a unique male-female community and social institution. We do not support the inclusion of the 'sexual orientation' in section 9(3) of the Bill of Rights. This not an absolute right and may be limited in terms of section 36 of the Constitution. It is argued that homosexuals are not being unfairly discriminated against by not being allowed to marry, since real marriage can only be between a man and a woman. Same-sex marriage is in fact an impossibility and the law should not recognise something which is not real. Such recognition would simply degrade the value of the recognition of real marriage. Do the majority of South Africans want legal recognition of homosexuality? The SALRC discussion paper argues that there is a trend in favour of recognition of homosexual relationships in South Africa, citing various court cases and media reports. The discussion paper argues that 'Constitutional protection was arguably the most significant reason behind changed attitudes to gays and lesbians'9 Nevertheless, this appears to be solely due to the persistence of a small minority of homosexual activitists, against the will of the majority of the population. The latest (2003) and still unpublished 'Social attitude survey' conducted by the Human Sciences Research Council, found that only one in every fifteen South Africans believed that it was 'not wrong' for two adults of the same sex to have sexual relations10. Thus social attitudes haven't actually changed. Why then should a small minority having liberal attitudes on homosexuality led by an even smaller minority of homosexual activists be allowed to impose their views on marriage on the rest of South African society? Evidence also tends to suggest that even amongst this tiny minority, even fewer actually have any interest in getting married. Rather, a few activists are through the law seeking social acknowledgement for their unnatural relationships. But the vast majority of South Africans don't accept same-sex relationships and don't want the government to do so either. The fact that this tiny minority has managed to get public attention shows only their capacity to manipulate the media, judiciary and political system rather than any substantial support. The South African Law Reform Commission and government should not waste effort on revising legislation to accommodate their demands. Benefits of real marriage for bringing up children Richard Duncan(1997)11 offers the following list of legitimate governmental interests that justify a law that marriage requires a man and a woman: (1) public morality; (2) encouraging childbirth within marriage; (3) the advantages of dual-gender parenting; and (4) educative effects.

4 A change in the definition of marriage is a risky social experiment that will have serious implications for our society. Those who propose such a change ignore the fact that marriage is a social institution, not merely a vehicle to promote individual self-interest. Allowing such a change would send the message that marriage is a means to satisfy the personal desires of adult individuals, rather than an institution that is primarily, though not exclusively, about meeting the needs of children and the community. Changing the definition of marriage would deny the significance of the right of every child to have a mother and a father, as well as the significance of the different roles mothers and fathers play in the rearing of children. Social science evidence shows clearly that men and women bring different but complementary skills and aptitudes to the critical partnership known as parenting. There is a large and growing body of evidence that indicates the benefit children gain from regular interaction with two parents of the opposite sex - their father and mother.12 While homosexual activists hold up studies that conclude that same-sex parents are no different than opposite-sex parents, a closer examination of these studies reveals a number of statistical and methodological flaws that put in doubt that assertion. In their review of 39 such studies, researchers Robert Lerner and Althea K. Nagai concluded that “these studies prove nothing. Therefore they should not be used in legal cases to make any arguments about ‘homosexual v. heterosexual’ parenting. Their claims have no basis.” 13 British researcher Patricia Morgan is even more blunt in her assessment of the research supporting same-sex parenting: “It is difficult to find such poor quality research as that which purports to show that same-sex parenting is at least as good if not superior to parenting by married couples. In many cases the word ‘research’ is a misnomer since often the only evidence consists of collections of anecdotes. This is often advocacy parading as research.” 14 The current British Foreign Secretary and then Home Secretary, The Right Honourable Jack Straw, may have put it best: “Children in my judgement, and I think it’s the judgement of almost everyone including single parents, are best brought up where you have two natural parents in a stable relationship. There’s no question about that. What we know from the evidence is that, generally speaking, that stability is more likely to occur where the parents are married than where they are not.” 15 The benefits of marriage result from the unique nature of the heterosexual bond. South African families will experience negative repercussions from the redefinition of marriage. In heterosexual marriage, husbands and wives benefit each other, resulting in better physical and emotional health, and financial well-being.16 Furthermore, fathers and mothers benefit their children in different yet complementary ways. Studies show that mothers and fathers interact differently with children and that both types of interaction are valuable and even necessary for healthy child development.17 For example, research shows that a father who is involved in the life of his child contributes to higher educational achievement, more pro-social behaviour, and higher self-esteem.18

5 To the benefit of both marriage and parenting, a heterosexual union also:     

recognises and addresses the fact of sexual difference and opposite sex attraction affirms the significance of sexual complementarily, as well as the important place of male-female bonding in human life; encourages the procreativity of heterosexual bonding; provides the unique atmosphere of heterosexual parenting which bonds children to their parents; and explains the rich genealogical nature of heterosexual family ties.19

By their very nature, same-sex marriages cannot experience or provide the above marriage and parenting benefits found within a heterosexual marriage. The re-definition of marriage will result in a marked increase of same-sex unions and parenting. Clearly, the research community has been able to adequately appraise and ascertain whether one family lifestyle is healthier than another. The empirical evidence falls overwhelmingly in favour of stable marriage and against all other alternative forms of family life: cohabitation, divorce, and stepfamilies. What is striking is that even though there is a very strong consensus on this issue in the academic research community, many of the cultural institutions, the gatekeepers of popular opinions and ideas, are not willing to make a considered and confirmed judgement on what is the best model for family life. They continue to play the role of family relativists, trivializing marriage as an institution and championing the idea that one form of the ‘family’ is just as good as another.20 Should the proposal to amend the Marriage Act to include same-sex marriages be enacted, our government will have chosen to abandon a long history of law recognizing marriage as the union of a man and a woman. In writing this new legislation they will be disregarding the basis for marriage that is so universal and so foundational to culture that it far predates the Parliament of South Africa. Our Parliamentarians were elected to represent the views of the entire nation. As Christians, who believe marriage to be a sacred, biblical institution and a divinely established covenant, most of the citizens of our nation would not be in favour of the proposed changes. Marriage is a concept that is inseparable from its societal and religious meanings and origins and as such we should not attempt to redefine it! Recommendation Same-sex relationships should not be legally recognised as 'civil unions', domestic partnerships, as marriage or in any other form. To address legal pressures, the reference to 'sexual orientation' should rather be removed from the constitution, the Equality Act and all other legislation. Those who struggle with homosexual temptations should be encouraged to seek help from Christian organisations and churches.

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B. AN APPEAL NOT TO PROVIDE LEGAL RECOGNITION FOR REGISTERED AND UNREGISTERED DOMESTIC PARTNERSHIPS Alternative proposals of the SALRC for recognising cohabiting couples While this submission concentrates on the proposed amendment of the Marriage Act, our concern extends to the proposed registered and unregistered partnerships legislation that will provide for the following options: 1.

The civil union model, whereby legal protection can be accorded to couples in unmarried relationships, and which aims at providing for a status parallel to marriage, but within a separate institution. Civil unions would be available to both same and opposite-sex couples.

2.

The registered partnership model will allow unmarried partners of the same or opposite sex who do not wish to get married or to obtain all the legal consequences of marriage, but still desire some protection, to register their mutually dependent domestic relationship in order to gain official state and societal recognition.

3. The unregistered partnership model will allow unmarried and unregistered partners of the same or opposite sex to be awarded a civil status as if they have formally committed to the relationship, without their having taken any steps to effect such recognition. The negative social impact of cohabitation Given that the above options would be less damaging than the option of extending the definition of marriage, they nevertheless would have negative consequences if implemented. The law is a powerful tool. It clearly shapes our behaviour. While it is acknowledged that we are moving from a marriage culture to a ‘living together’ culture, evidenced by the fact that non-marital cohabitation has increased dramatically as an alternative form of family life, providing legal recognition for such relationships will result in explosive growth in the number of such relationships. Even more alarming will be the growth in the number of children being raised by parents in a cohabiting relationship. Alarming because research indicates that starting conjugal life in a cohabiting relationship, as opposed to marriage, sharply increases the probability of this first union ending in separation.21 This will have negative effects on children born from this relationship. More serious is the finding reported in a special issue of the Journal of Comparative Family Studies that “children living with caretakers other than two biological parents are at greater risk for child maltreatment”. 22 In Canada, the increased legal recognition of cohabitation has had a clear impact on Canadian society. Through the 1980s the federal and provincial governments of Canada have increasingly treated cohabitation as equivalent to marriage. Statistics Canada tells

7 us that the majority of young people today are entering their first conjugal union through cohabitation. Sociologist Zheng Wu suggests that: “the experience of cohabiting itself affects the attitudes of individuals towards marriage and decreases their propensity to marry.” 23 Other researchers have found that marriages preceded by cohabitation are twice as likely to end in divorce than marriages not preceded by cohabitation, even after factoring for other potential causes.24 This trend is especially troubling when the well-being of children is considered. In her analysis of data for Statistics Canada’s national Longitudinal Study on Children and Youth (NLSC), Nicole Marcil-Grafton indicates that children born to parents living in a cohabitational relationship are nearly five times more likely to see their parents separate by the age of 10 compared to children whose parents are legally married and have never cohabitated. Even if a child’s parents subsequently marry (either before or after the child was born), parents who have cohabitated are still twice as likely to separate than married parents who have never cohabitated. 25 Statistics Canada researchers have further found that men and women in cohabitational relationships are four times more likely to report spousal abuse than those in legally married relationships.26 When it came to fatal domestic violence, “the rate of spousal homicide for women in common-law marriages was….more than 8 times higher than married couples.” 27 The Canadian research findings are upheld by research findings conducted in several Western countries including New Zealand, Sweden, Australia and the United States. The Canadian experience provides valid evidence that the increased legal recognition of cohabitational relationships has not led to positive results. Is there any reason to think that the legal recognition of ‘registered and unregistered partnerships’ is somehow going to be positive for South African society? Despite massive romanticising of immorality in the media, the recent social attitude survey by the Human Sciences Research Council found that the majority of South Africans believe that it is wrong for a man and a woman to have sexual relations before marriage28. Recommendation Conjugal relationships outside of marriage should not be legally supported by the state in any form, either with civil unions, registered partnerships or unregistered partnerships. Heterosexual couples living in sin should be encouraged to get married or separate.

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ENDNOTES

South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships Volume 1 p vi. 2 South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships Volume 1 p 1. 3 South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships Volume 1 p 159. 4 Mary Ann Glendon:A World Made New (New York: Random House, 2001) pp xvi- xvii. 5 Eds:Teresa Wagner, Leslie Carbone, Fifty Years After the Declaration, (Lanham, New York, Oxford: University Press of America, 2001), p xvii. 6 Robert P George & Gerard V Bradley, Marriage and the Liberal Imagination, 84 Geo. L.J. 301 (1995). 7 Cox B: Nat’l J. Sexual Orientation 1996. 8 David Orgon Coolidge, William C Duncan: Definition or Discrimination? State Marriage Recognition Statutes in the “Same-sex Marriage” Debate. Creighton University 1998 9 South African Law Reform Commission. Discussion Paper 104, Project 118, Domestic Partnerships Volume 1 p 47. 10 Human Sciences Research Council: South African Social Attitudes Survey. Unpublished 2003 study. Personal communication with Dr Stephen Rule. 11 Richard F Duncan: The Narrow and Shallow Bite of Romer and the Eminent Rationality of DualGender marriage: A Response to Professor Koppelman,6 Wn & Mary Bill Rts. J. 147, 158-65 (1997) 12 Glenn T Stanton : Why Marriage matters: Reasons to Believe in Marriage in Post-modern Society (Colorado Springs: Pinon, 1997) 13 Lerner Robert & Althea K Nagai, No Basis: What the Studies Don’t Tell Us About Same-sex Parenting. Washington D.C., Marriage Law Project, January 2001 14 The Christian Institute, News Release: Same-sex Parenting is Bad for Kids. February 6, 2002 1

15 16

Straw The Rt. Hon. Jack MP, on the Today programme, 4 November 1998 Linda J Waite & Maggie Gallagher, The Case for Marriage (New York: Broadway, 2000)

17

Kerig, P K & Cowan, P A: Marital Quality and Gender Differences in Parent-child Interaction, Developmental Psychology 29,6 (1993): 931-939 18

Horn W: Father Facts, editions 3 and 4, National Fatherhood Initiative, Gaithersburg, MD List provided by Dr Dan Cere, head of The Canadian Institute for Marriage and Family and professor at McGill University, Montreal. 20 Glenn T Stanton: Only a Piece of Paper? Public Policy Division, Focus on the Family, Colorado Springs,1995 21 Le Bourdais Celine, Ghyslaine Neil & Pierre Turcotte: “The changing face of conjugal relationships” Canadian Social Trends. Spring 2000, Statistics Canada, Cat. No. 11-008 p15 22 Malkin, Catherine and Michael lamb (1994): Child maltrreatment: A test of sociobiological Theory”, Journal of Comparative Family Studies, 25: 121-133 23 Zheng Wu, “Premarital Cohabitation and the Timing of First Marriage.” Canadian Review of Sociology and Anthropology, 1999, Vol. 36, No. 1, p. 109 –126 24 Hall D R & J Z Zhu, “Cohabitation and Divorce in Canada: Testing the selectivity hypothesis.” Journal of Marriage and Family, 1995, Vol. 57, p 421 - 427 25 Marcil-Gratton Nicole, “Growing Up with Mom and Dad? The intricate family life course of Canadian Children,” July 1998, Ottawa, Statistics Canada Cat. 89-566- XIE 26 Bunge Valerie Pottie and Andrea Levett: “Family Violence in Canada: A Statistical Profile 2000, Statistics Canada, July 2000 p. 15 27 Bunge Valerie Pottie and Andrea Levett, ”Family Violence in Canada: A Statistical Profile 1998. Statistics Canada , May 1998, p. 29 19

Human Sciences Research Council: South African Social Attitudes Survey. Unpublished 2003 study. Personal communication with Dr Stephen Rule. 28